by Maria Inês Costa, Master's student in Human Rights at UMinho

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The first article of the EU Charter of Fundamental Rights focuses on the preservation of the human being’s dignity. Gomes Canotilho and Vital Moreira highlight that the dignity of the human person is the mainstay of the principle of equality, in the sense that it is not possible to weight or grade “dignities”: it belongs to everyone, not just the “normal” people, but also the disabled, criminals and with “deviations”, not just to national citizens (and Europeans), but also to foreigners, stateless people, refugees and the exiles. This observation presents a vision of human dignity as something that belongs to everyone by virtue of being human, and not due to some exceptional condition. It is a right that is ours, and under no circumstances can it be taken away from us.

Having these ideas present in mind, it is of great relevance to pay attention to the process and conclusions that can be taken from the publishing of the judgement of the EU Court of Justice, written following the case C-233/18, that opposed Zubair Haqbin to Fedasil, the Federal Agency for the reception of asylum seekers, in Belgium.

Zubair, a young minor of Afghan nationality, applied for international protection to the Belgian authorities on 23 December 2015. He was taken to a center in Sugny and Brochem, and he was also appointed a tutor.

In April 2016, Zubair participated in acts of violence that involved residents from the foster center in Broechem. A disciplinary sanction was applied to him, according to article 45 of the Law on the reception of asylum seekers and certain other categories of foreign nationals. He was ordered temporary exclusion from the center. Fedasil manifested support for this decision on the 21st of April 2016 and, allegedly, Zubair would have slept in a public park from 19 to 21 of April 2016, and later, between 24 of April and the 1^st of May 2016. Meanwhile, on the 25^th of April of the same year, Zubair’s tutor required the suspension of the exclusion measure, but such request was not accepted. Thus, the tutor decided to appeal against the decision to the court on 27 March 2017. According to what is stipulated in the European Union Directive 33/2013, the Labour Court in Brussels made an appeal to the Court of Justice in order to know whether a Member State can exclude an unaccompanied minor because of the violent acts he has committed, and to what extent it can do so.

The 1st article of this directive focuses on the documents in which the Member States should base their analysis on in order to ensure the respect for the principles of the defense of the best interests of minors and family unity, including the EU Charter of Fundamental Rights, the UN Convention on the Rights of the Child and the Convention for the Protection of Human Rights and Fundamental Freedoms.

We should take notice that the directive establishes that one should limit the possibilities of abuse of the system, while ensuring a decent standard of living for all applicants. The articles of the Charter of Fundamental Rights which the Directive aims to promote are highlighted. Article 24 of the Charter focuses on the rights of children and is one of the most relevant as the subject of analysis, bearing in mind that Zubair was, at the time, an unaccompanied minor. This article states that children have the right to the protection and care necessary for their well-being and, moreover, that all acts relating to children (…) will primarily consider the best interests of the child. Article 20(4) of the above-mentioned Directive determines the possibility of withdrawing the benefit from material conditions in the face of violations of the rules in force in the centers. However, it is stated that such a decision must be substantiated, and that the principle of proportionality will be considered.

Article 3 of the Reception Act reiterates that the reception given to asylum seekers must respect and promote human dignity and, in turn, Article 5 declares a prohibition on the abolition of this support. The sanctions that may be applied may consist of the temporary withdrawal of support for a maximum period of one month, and must be applied in an objective, impartial and reasoned manner. In addition, material support can never be completely removed.

Based on the European Union directive referred to above, the referring court wanted to understand whether it is possible for a Member State to abolish or limit the support of material reception conditions considering the situation at issue. For its part, the Labour Court in Brussels referred questions to the Court of Justice of the European Union which are the corollary of the concerns previously raised, when asking about the existence of incompatibility, or not, between what Directive 2013/33 states normatively and national legislation, which considers it possible to exclude the benefit of the material conditions of reception of a accompanied minor in the light of its actions. It also questioned the extent to which the sanctions, imposed by the Member State hosting, Belgium in this case, could go. In addition, the court wanted to understand what steps the national authority should take to ensure a decent standard of living for Zubair Haqbin. In short, it is possible to induce, in view of what Advocate General Manuel Campos Sánchez-Bordona exposed, that, in the light of what happened, taking the immediate decision to exclude Zubair from the reception center was hasty and arbitrary.

As the AG points out, Article 20(5) and (6) of Directive 2013/33 should be interpreted as meaning that the competent national authority must, prior to the adoption of the exclusion decision, use the assistance services and/or judicial authorities responsible for the protection of children, in order to ensure that the minor will benefit from a continuous take-over and tailored to the specific needs that his age, status and situation require.

It is recognized that the need to ensure the maintenance of human dignity does not compact with the suppression of the desired standard of living, even if temporarily, taking into account primarily the principle of human dignity. It can only be preserved if access to the material conditions of existence is maintained, especially in the case of an unaccompanied minor.

The final conclusion of the document considers, unequivocally, on the basis of Directive 2013/33, that a type of sanction such as the one applied infringes the principle of proportionality and, moreover, clashes with the need to ensure a decent life for the applicant.

We undoubtedly agree with the decision of the Court of Justice, which symbolized the end of an arbitrary practice: exclusion of asylum seekers from reception centers when they have unruly behaviour. Human dignity belongs, indeed, to everyone. Violating the dignity of some would be totally at odds with the fundamental principles emanated from the European laws, and it is of great importance that this basis of primary values of the EU is never called into question.

Furthermore, preventing possible situations of indigence by reducing the imposition of such sanctions would increase security levels, not the other way around. We believe that it would make sense for reception centers in Europe to be provided with the essential conditions for healthier human development, especially for children. This could involve an investment in more adjusted psychological and psychosocial follow-up. At the same time, it would be possible to create more inclusive and secure societies. In this way, the rights of children and all those who, under specific circumstances, are experiencing situations of great vulnerability.